Tuesday, March 10, 2009

Pepperdine University Law Professor Douglas Kmiec: two-part Findlaw series on "The California Supreme Court Hearing on the Validity of Proposition 8"

03/09/09 Findlaw (part 1) and 03/10/09 Findlaw (part 2): In part 1, Douglas Kmiec summarizes the oral arguments, and faults the "claim that there is no check on what the people of California can do" by initiative. In part 2, he elaborates on a proposal by him and his Pepperdine colleague, Shelley Ross Saxer, that he thinks "would vindicate both sets of fundamental principles -- of equality and religious liberty -- that are inescapably intertwined with the same-sex marriage question." Justice Ming Chin had asked Kenneth Starr whether the proposal would provide equal protection to same sex couples, and whether the Court could order it. Without endorsing it, Starr answered that it would sustain the California constitution's guarantee of equal protection, but that the Court could not order it. (For discussion in the oral arguments, see also the 03/06/09 LA Times editorial favoring the proposal.) In his 3/10/09 Findlaw article, Kmiec offers draft legislation that the California legislature could adopt if the Court upholds Prop. 8.

03/10/09 ADF Alliance Alert: The Alliance Defense Fund characterizes the proposed remedy as "undermining Prop. 8."

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